LAND USE PLANNING
The 2009 Victorian Bushfires Royal Commission identified land use planning as an important measure for reducing bushfire risk:
Many have argued that planning regulation is crucial; for example, the 2004 report of the National Inquiry on Bushfire Mitigation and Management cited land-use planning as ‘the single most important mitigation measure in preventing future disaster losses in areas of new development‘… planning decisions in relation to settlement matters, land use and development, and the location of individual buildings on a property can potentially reduce bushfire risk by, among other things, restricting development in the areas of highest risk, where people’s lives may be gravely endangered in the event of extreme bushfire (Teague, McLeod, & Pascoe, 2010, Vol. II, p. 214).
The Commission also noted the inherent limitations of land use planning measures, which seek to reduce risk in the long-term, operate prospectively and have little capacity to deal with past decisions in relation to existing uses of land (Teague, McLeod, & Pascoe, 2010, Vol. II, p. 214).
Land use planning in Victoria is regulated by the Planning and Environment Act 1987 (Vic) (Planning and Environment Act). Strategic planning is undertaken by planning authorities using a set of standard state-wide planning provisions called the Victorian Planning Provisions to create local planning schemes. Responsible authorities make decisions about the use and development of land in accordance with the permit application process set out in the Planning and Environment Act, with reference to planning scheme controls.
Section 1 of the Planning and Environment Act establishes ‘a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.’ The Minister for Planning administers the Planning and Environment Act with support from the Department of Transport, Planning and Local Infrastructure (DTPLI). The Minister has various roles under Part 1A of the Act, including the central role of preparing and amending the Victorian Planning Provisions.
The Victorian Planning Provisions comprise:
- the State Planning Policy Framework
- a set of zones and overlays used by each council to construct the planning scheme for its municipality
- particular provisions
- general provisions
- documents that apply consistently across all planning schemes.
The State Planning Policy Framework sets out general principles of land use and development planning in relation to settlement, environmental and landscape values, environmental risk, natural resource management, built environment and heritage, housing, economic development, transport and infrastructure.1 The Environmental Risk Policy in the State Planning Policy Framework specifically requires consideration of the risk of bushfire, and establishes broad strategies for strengthening community resilience to bushfire.2
The Victorian Planning Provisions contain a set of standard zones that may be applied by councils to land in their municipal district. These zones determine the ways in which particular land may and may not be used and developed. Within each zone, some uses of land exist ‘as of right’, some uses require a permit, and there are some prohibited uses. Some land falls under an ‘existing use’, which means that if it has been used for a particular purpose for a period of 15 years and that use was lawful at the outset, it becomes exempt from the zone requirements.3 The zones in the Victorian Planning Provisions are grouped as residential, industrial, commercial, rural, public land and special purpose zones.4
Overlays are a further layer of planning controls that may be applied by councils to land. A standard set of overlays is contained in the Victorian Planning Provisions. Overlays focus more on requirements for the development of land than on the uses to which it may be put, and more than one overlay may be applied to a given parcel of land. The overlays in the Victorian Planning Provisions are grouped as environment and landscape overlays, heritage and built form overlays, land management overlays, and ‘other overlays’.5
The Victorian Planning Provisions also contain a set of particular provisions that apply across planning schemes to particular uses and developments (in addition to the requirements of a zone or an overlay), and a set of general, largely administrative provisions that apply across planning schemes.
Land use planning for fire risk management in the Latrobe Valley
Pursuant to s. 8 of the Planning and Environment Act, the Minister may prepare a planning scheme for any area of Victoria. The Latrobe City Council is the planning authority for the Latrobe Planning Scheme.6 The Council may only amend its planning scheme with the authorisation of the Minister.7
Under ss. 13 and 14 of the Planning and Environment Act, a ‘responsible authority’ is the person responsible for the administration and enforcement of a planning scheme. In its capacity as a responsible authority, the Latrobe City Council sets zone and overlay controls for land use and decides applications for permits for the use and development of land within its municipal district.8
The Latrobe Planning Scheme comprises both the Victorian Planning Provisions and local planning provisions established by the Latrobe City Council. The Local Planning Policy Framework sets out the Council’s vision for the municipality, and its broad land use planning policies. Two aspects of the Latrobe Local Planning Policy Framework are of particular relevance to this Inquiry.
The first aspect is ‘Natural Environment Sustainability’ under cl. 21.03, which contains a number of objectives, one of which is bushfire risk management. Clause 21.03-8 titled ‘Wildfire Overview’ identifies two objectives – to ensure that new land use and development does not increase the level of fire risk; and to ensure that new land use and development includes adequate fire protection measures.9 Implementation of these objectives, and the strategies that support them, is achieved by applying relevant overlays, in particular the ‘Environmental Significance Overlay–Schedule 1 Urban Buffers’, and the ‘Bushfire Management Overlay’. These overlays are discussed in more detail below.
The second aspect is ‘Economic Sustainability’ under cl. 21.07, which acknowledges linkages between the natural environment and the economy—namely that natural resources, such as coal, timber and farmland, help drive the local economy. Clause 21.07-3 identifies the following key issues relevant to coal as an economic resource:
- the significance of the Gippsland Coalfields Policy Area in providing, directly or indirectly, the major proportion of Victoria’s energy supplies, in the form of brown coal
- the presence of established communities, including the urban settlements of Latrobe City, as a networked urban system
- the significance of fire as a major hazard to people, plant and equipment employed in the mining of brown coal, and the major consequences arising from interruption to the electricity supply
- the importance of established agricultural activity
- the water resource, both surface and underground, to the quality of the regional water catchment
- the profound effect of major industries on the physical and social environment of the municipality
- the need for cooperation between all levels of government, the private sector and the community, and the importance of the adequate recognition of all sectors in decision making for the region.10
Clause 21.07-4 provides for coal buffers, of between 750 and 1,000 metres, between urban development and existing and future coal resource development. An objective of the coal buffer is to provide for uses and developments within the buffer area that are compatible with coal development. A strategy to achieve this is to ensure the management, use or development of land in all buffer areas minimises the potential fire risk to open cut mining.11
The Hazelwood mine and most of the land that surrounds it is zoned ‘Special Use Zone–Schedule 1–Brown Coal (SUZ1)’. The primary purpose of SUZ1 is to provide for brown coal mining, electricity generation and associated uses. The secondary purpose of SUZ1 is to allow for interim non-urban uses that will protect brown coal resources and discourage the use or development of land that is incompatible with future mining and industry. Dwellings are allowed within SUZ1 in restricted circumstances only.12
The ‘as of right’ land uses specified under SUZ1 stipulate that a buffer zone of at least 1,000 metres between coal mining and related uses, and a residential zone, a business zone and land used for a hospital or a school, is required.13 However, the Latrobe City Council is not able to enforce this buffer zone within a mine licence boundary. Under cl. 52.08 of the Victorian Planning Provisions (titled ‘Earth and Energy Resources Industry’), no permit is required to use or develop land for mineral extraction licensed under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (Mineral Resources Act). This exemption reflects s.42 of the Mineral Resources Act.14 The practical effect of these provisions is that the Mining Regulator (the Earth Resources Regulation Branch of the Department of State Development, Business and Innovation), not the Latrobe City Council, is the relevant authority in relation to the use and development of land within the Hazelwood mine boundaries.
The Latrobe Planning Scheme applies two overlays that assist in managing fire risk.
The first is an ‘Environmental Significance Overlay–Schedule 1–Urban Buffer (ESO1)’ under cl. 42.01.15 This overlay is applied to areas around the Hazelwood mine to implement the policy on coal buffers. An application for any proposed development within 1,000 metres of a mining licence must be accompanied by a fire management plan.16
The second is a ‘Bushfire Management Overlay’ under cl. 44.06, which is applied to identify bushfire prone land within Latrobe City. The Bushfire Management Overlay aims to ensure that the location, design and construction of development considers the need to implement bushfire protection measures, and to ensure that development does not proceed unless the risk to life and property from bushfire can be reduced to an acceptable level.17
The Latrobe Planning Scheme must be reviewed every four years. A review is due to be completed in 2014. The Minister for Planning must approve any changes under the planning scheme.18
The Board’s attention was drawn to the existence of several timber plantations to the west and south of the Hazelwood mine. In a landscape that has largely been cleared of native vegetation, timber plantations are a potential source of fuel for a bushfire and can create embers that are carried long distances.19
The Latrobe Planning Scheme addresses the coexistence of timber production with the development and use of the coal resource in several ways. The Latrobe Local Planning Policy Framework adopts overall strategies to:
- ensure that timber production is planned in a manner which will complement the orderly development of the coal resource
- ensure that timber production takes into account the need for effective fire protection
for the coal resource
- give timber production a lesser priority than the extraction of coal and agricultural land
use activity unless a proper economic assessment shows it to be viable.20
Further, SUZ1 requires a permit for timber plantations within 1,000 metres of land covered by a mining licence. Before deciding on an application for such a permit, the Council must ensure that there are measures in place to address fire risk, particularly in the vicinity of a brown coal mine.21
Mr Jason Pullman, Latrobe City Council Coordinator of Strategic Planning, told the Board that currently there are three timber plantations within 1,000 metres of the Hazelwood mine (see Figure 3.1).
Figure 3.1 Location of mining licences and selected timber plantations near the Hazelwood mine22
Two of these plantations, to the west and the south-west of the mine, are on land zoned SUZ1 and are owned by Hancock Victorian Plantations Pty Ltd (HVP). The third plantation, to the north-west of the mine, is on land in the Public Use Zone and is owned by Gippsland Water. Although the Latrobe Planning Scheme would require a permit for these timber plantations if they were established today, Latrobe City Council has no record of issuing a permit for any of them.23
The Board received a submission from HVP which confirmed that it owns two timber plantations in close proximity to the Hazelwood mine—the Narracan Plantation to the west of the mine and the Hazelwood Plantation to the south-west—and that it does not hold a planning permit for either plantation. Both plantations were established in about 2001, at a time when they were not owned by HVP. The Narracan Plantation was acquired by Australian Paper Plantations Pty Ltd, as part of a land swap with Hazelwood Power. The Hazelwood Plantation was initially acquired by Australian Paper Plantations as part of a land swap with the Victorian Government. The title to both plantations contains a restriction that the land only be used for the growing of hardwood timber plantations. HVP’s understanding when it acquired both titles was that if permits were required and did not exist, the land enjoyed existing use rights.24
Gippsland Water submitted to the Board that it owns land to the north-west of the Hazelwood mine, and that it leases part of that land to Generation Victoria, trading as Ecogen Energy, for the purpose of planting, maintaining and harvesting Tasmanian Blue Gums. The plantation was first planted in 1998. Gippsland Water confirmed that it does not hold a planning permit to use the land for timber production.
Gippsland Water told the Board that in May 1998 the Latrobe Shire Council advised Ecogen Energy that a permit was not required.25
GDF Suez provided evidence to the Board that in May 1998, Hazelwood Power (as it was then known) wrote to Gippsland Water raising concerns about the proposed establishment of the plantation on its land, due to ‘the significant fuel source this would represent in time of bushfire conditions’; the fact that ‘the proposed plantation is well within recognised distances of fire “spotting”’; and the proximity of the plantation to the Hazelwood mine.26 Hazelwood Power’s concerns were apparently alleviated after a meeting with Ecogen Energy, also attended by a County Fire Authority (CFA) Risk Manager, at which Ecogen Energy agreed to develop a fire management plan for the plantation.27
Hazelwood Power also corresponded with Australian Paper Plantations in 2000 about the fire risk posed by eucalypt plantations. GDF Suez provided the Board with a letter from Australian Paper Plantations dated 7 January 2000, which assured Hazelwood Power of its good fire prevention and suppression record.28
All three timber plantations were well established by 2009, when GDF Suez obtained a variation of its work plan to extend the Hazelwood mine to the west.29 A complex approval process preceded the work plan variation. The process included a panel hearing in 2005 to assess an environmental effects statement and the proposed amendment of the Latrobe Planning Scheme.30 There is no indication in the evidence before the Board that the proximity of the timber plantations to the proposed new west field of the Hazelwood mine was raised as a consideration in this approval process.31 Evidently the existence of the plantations did not deter GDF Suez from seeking to extend the mine towards them, or necessary approvals being given.
Independent expert, Mr Roderic Incoll, Bushfire Risk Consultant, advised the Board that he was not confident with the advice received by the mine in 1998 that the risk of fire from the plantations to the north-west of the mine could be appropriately managed. In Mr Incoll’s opinion, the proximity of these plantations to the mine represents a ‘significant planning failure’, and the plantations are a potential source of embers that could cause a similar event to the mine fire that occurred on 9 February 2014.32
Mr Incoll stated:
The presence of eucalypt plantations in the north-to-south-west proximity of the Mine, while in conformity with the planning rules, provides a ready source of firebrands [embers] under high fire danger weather conditions…Significant quantities of suspended bark fuel capable of forming firebrands [embers] that could be propelled into the Mine under fire conditions are present and obvious in eucalypt plantations west of the mine…This is not novel or unusual and in my opinion amounts to a foreseeable risk…This is an issue that is not effectively addressed by the mine fire policy framework or necessarily by the local planning rules.33
Mr Incoll identified the proximity of these plantations to the mine in Figure 3.2.
Figure 3.2 Distance of established eucalypt plantations from Hazelwood mine34
HVP acknowledged that during a bushfire, fire spotting is likely to arise from all types of eucalypts. However, HVP submitted that the risk of generating burning embers and igniting spot fires varies markedly, and that young eucalypts in plantations present a significantly lower risk than do mature eucalypts in unmanaged stands.35
The fact of other sources of fire spotting in the vicinity of the mine was acknowledged by Mr Incoll who noted that:
…even if the plantations could be removed by the wave of a magic wand, there are numerous windbreaks and belts of remnant roadside vegetation within spotting distance on freehold rural land that would still pose an (albeit reduced) hazard to the Hazelwood Mine operations during the passage of high intensity rural fires.36